IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

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TERESA BLUBAUGH,

Plaintiff

v.

HARFORD CNTY. SHERIFFS OFFICE

et. al.,
Defendants
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CIVIL NO. JKB-15-1207

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MEMORANDUM AND ORDER

I. Background
Plaintiff Teresa Blubaugh has sued Defendants for alleged gender discrimination and
retaliation for engaging in protected activity in violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of
1964 (as amended by the Civil Rights Act of 1991), 42 U.S.C. 2000e et seq., the Civil Rights
Act of 1871, 42 U.S.C. 1983, and the Maryland Fair Employment Practices Act (MFEPA),
Md. Code Ann., St. Govt 20-606 (LexisNexis 2014). (Compl., ECF No. 1.) Pending before
the Court are Defendants motion to dismiss (ECF No. 6) and Blubaughs motion to amend the
complaint (ECF No. 8). The motions have been briefed (ECF Nos. 7, 9, 10), and no hearing is
required, Local Rule 105.6 (D. Md. 2014). The motion to dismiss will be denied and the motion
to amend will be granted.
II. Standard of Dismissal for Failure to State a Claim
A complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. An inference of a mere
possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, Factual allegations must be enough to raise a right to relief above the
speculative level. 550 U.S. at 555. A pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will not do. . . . Nor does a complaint
suffice if it tenders naked assertion[s] devoid of further factual enhancement. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
III. Standard for Motion to Amend
Within 21 days of the filing of a defendants motion to dismiss, an amended complaint
may be filed as a matter of right, requires no motion, and requires neither consent by the
opposing party nor leave of court. Fed. R. Civ. P. 15(a). Those are the circumstances here and
no motion to amend was required. Since Blubaugh, however, did file such a motion, it will be
granted. Defendants objection to the amended complaint is a general assertion of futility but is
of no moment because of the timing of Blubaughs motion to amend.
IV. Allegations of the Complaint
The amended complaint only changes the identity of the Employer Defendant from
Harford County Sheriffs Officea nonexistent, nonsuable entity, see Hines v. French, 852 A.2d
1047, 1071 (Md. Ct. Spec. App. 2004) (Harford County Sheriffs Office not separate legal entity
capable of being sued)to the Harford County Sheriff. The current Sheriff is Jeffrey R. Gahler,
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who was served with the original complaint and has been participating in the case from the
beginning through counsel. Otherwise, the amended complaint is the same as the original, and
citations herein will be to the original complaint.
Blubaugh is a white female who was formerly an employee of the Harford County Sheriff
(the Sheriff); the Sheriff during the time of Blubaughs employment was L. Jesse Bane, who is
now sued in his individual capacity. (Compl. 3-5.) Blubaugh was employed by the Sheriff
from 2003 until her employment was terminated effective April 1, 2015, because she was not
medically able to continue in her position. (Id. 6.) At the time of her termination, Blubaugh
had attained the rank of corporal. (Id.)
Prior to her employment with the Sheriff, Blubaugh was in the U.S. Army in the field of
counterintelligence. (Id. 7.) After she was honorably discharged, she eventually moved to
Maryland. (Id.) In 2003, she was employed by the Sheriff as a correctional officer at the
Harford County Detention Center. (Id. 8.) From October 2004 to April 2005, she attended the
Countys law enforcement academy and graduated second in her class. (Id.) Thereafter, she
received several awards and commendations for her work, which included traffic enforcement,
service as a training instructor for field sobriety tests, and criminal investigations, including
specific focus on burglaries and child sexual abuse. (Id. 9-12.).
In February 2011, Blubaugh was promoted to the rank of corporal and assigned to Shift 3
in the Countys Northern Precinct under the supervision of Sgt. Ian Loughran, a white male. (Id.
13-14.) Up until that new assignment, Blubaughs experience in the Sheriffs Office had been
generally positive. (Id. 14.) From the beginning of this new assignment, however, Blubaugh
was subjected to harassment, hostile work environment, and unfair treatment by Sgt. Loughran
because she is female. (Id. 15.) Blubaugh states Sgt. Loughran made inappropriate statements
to her based upon her gender and gives as an example his advice to her that it looked bad for her
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to be hanging out with the guys because she is female. (Id. 15.) Blubaugh also alleges, Sgt.
Loughran undermined her on a regular basis, spoke negatively about her to her subordinates, and
repeatedly tried to accuse her of doing things wrong when others confirmed that the Plaintiff had
done nothing improper.

(Id.)

Sgt. Loughran did not treat the male supervisors in this

demeaning and professionally limiting way. (Id.) She complained to several superior officers
from June 28, 2011, to May 23, 2012. (Id. 16.)
In March 2012, Blubaugh learned that an internal affairs investigation was being
conducted against her relating to remarks she purportedly made to her colleagues to support
litigation against the Sheriff. (Id. 17.) Sgt. Loughran was the initiator of the complaint, which
was not corroborated by anyone other than him. (Id.) On June 4, 2012, Blubaugh was notified
of a second internal affairs investigation against her based upon her response to a domestic
violence call on April 26, 2012. (Id. 18.) On July 6, 2012, she was suspended based on the
first internal affairs investigation. (Id. 19.) On July 11, 2012, she learned of a third internal
affairs investigation against her based upon her allegedly untruthful statements during the first
internal affairs investigation interview. (Id.) On August 2, 2012, Blubaugh was notified that the
allegations underlying the first investigation were unfounded but that the third investigation
based upon statements she purportedly made in the interview that occurred in relation to the first
investigationwas sustained and that the Sheriff was seeking her termination. (Id. 20.)
Blubaugh requested a trial board adjudicatory hearing to contest the action to terminate
her employment. (Id.) She also filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) on August 8, 2012. (Id. 22.) Subsequently, Blubaugh
was transferred to three different duty locations and her hours were changed five times, causing
her stress and hardship. (Id.) Following the filing of her EEOC charge, several females who
were either past or current employees expressed their verbal support to her, told her about their
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own experiences of gender discrimination while working for the Sheriff, and told her of their
reluctance to file complaints after witnessing the retaliation to which Blubaugh had been
subjected. (Id.)
The trial board proceeding arose from the second investigation relating to Blubaughs
response to a domestic violence call. (Id. 23.) She responded on that occasion after two male
deputies had already responded to the call. (Id.) Bane faulted Blubaugh for not submitting a
written report of the incident and for responding only to remain at the scene to assure the
victims safety while she left the premises. (Id.) Bane sought Blubaughs termination for these
alleged deficiencies in performance, while verbally counseling one of the two male deputies and
undertaking no discipline at all against the other male deputy in relation to the same incident.
(Id.)

Initially, Bane proposed Blubaugh accept a demotion, a letter of reprimand, and

reclassification from law enforcement officer to correctional officer; further Bane asked her to
drop her pending EEOC complaint. (Id. 24.) Bane told Blubaugh that if she declined his
proposed discipline and she took her case to the trial board, he would seek her termination. (Id.)
The trial board was convened on March 14, 2013, and concluded two days later. (Id.
25.) The Sheriffs own witnesses testified that the prevailing practice in the Sheriffs Office
was not to write a report on a domestic violence call unless evidence existed of a physical
altercation, visible signs of injury, or indication from the victim that she had been injured from
violence by her partner. (Id.) Since the officers observed none of those things, no written report
was required.

(Id.)

Further, the first officer responding to the scene indicated that any

responsibility for making the decision whether to write a report fell on him, not the Plaintiff.
(Id.)
The trial board sustained a ground for discipline against Blubaugh, but recommended the
discipline consist of a written reprimand, the loss of two days of leave, and referral to domestic
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violence training. (Id. 26.) By letter of April 25, 2013, Bane rejected the trial boards
recommended penalty and notified Blubaugh he would increase the penalty to termination. (Id.
27.) After being so notified, Blubaugh commenced a proceeding for judicial review in state
court. The reviewing judge rendered his opinion on June 2, 2014, and concluded that the
Sheriffs decision to terminate Blubaugh was not based on substantial evidence, but was based
upon assumption and conjecture and was arbitrary and capricious. (Id. 28.) Following the
courts decision, the Sheriff reinstated Blubaugh to her earlier position and restored her lost pay
due to the wrongful termination. (Id. 29.) Despite her reinstatement, Blubaugh was medically
unable to resume her career with the Sheriff due to harassment and stress created by the hostile
work environment attributable to the Sheriff and Bane. (Id. 30.) Effective April 1, 2015, the
Sheriff terminated Blubaughs employment because she was no longer able to perform her job.
(Id.)
In Count I against the Sheriff, Blubaugh asserts both gender discrimination and
retaliation in violation of Title VII and MFEPA. In Count II against Bane, Blubaugh claims
gender discrimination and retaliation under color of state law in violation of the Equal Protection
Clause; this count is brought pursuant to 42 U.S.C. 1983.
V. Analysis
Defendants motion to dismiss attacked Count I of the original complaint only for
Blubaughs naming the improper party. (Defs. Mot. Dismiss Supp. Mem. 5-6, ECF No. 6-1.)
With the docketing of the amended complaint, that objection no longer has merit.

In

Defendants reply, they argue, in cursory fashion, that the amended complaint is still defective
because suit against the Harford County Sheriff is a suit against the State itself. (Defs. Reply
10-11, ECF No. 9.) Presumably, Defendants mean to rely upon Maryland state law for the
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proposition that the Harford County Sheriff is a state official and intend to invoke sovereign
immunity in an attempt to dismiss Count I. However, sovereign immunity is akin to an
affirmative defense, which the defendant bears the burden of demonstrating. Hutto v. S.C. Ret.
Sys., 773 F.3d 536, 543 (4th Cir. 2014). Defendants one-sentence argument falls far short of
that burden. Moreover, Count I, the only count against the Sheriff, is brought under Title VII
and MFEPA. In 1972, Title VII was amended by Congress to abrogate the States sovereign
immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 452-57 (1976) (Eleventh Amendment and
state sovereignty it embodies are necessarily limited by enforcement provisions of 5 of
Fourteenth Amendment, pursuant to which Title VII was enacted). See also King v. McMillan,
594 F.3d 301, 308-09 (4th Cir. 2010) (state law demarcations of particular offices cannot be
used to cut off the (federal) Title VII rights of state and local employees). Thus, the Sheriff
may not claim sovereign immunity as to the Title VII claim regardless of whether he might be
entitled to sovereign immunity in other contexts. In addition, to the extent the Sheriff means to
claim sovereign immunity to the MFEPA claim, that argument also fails based upon the States
waiver of sovereign immunity in employment discrimination cases brought under MFEPA. Md.
Code Ann., St. Govt 20-903 (LexisNexis 2014). By its terms, the States waiver is not limited
to cases brought in Maryland state courts; instead, it broadly states, The State, its officers, and
its units may not raise sovereign immunity as a defense against an award in an employment
discrimination case under this title. It is reasonable to interpret the statute to apply to any case
under the applicable Title 20, regardless of where the case is brought.
Turning to the federal equal protection claim in Count II against Bane in his individual
capacity, the Court concludes Blubaugh has plausibly stated a case of gender discrimination
against Bane (and against the Sheriffemploying similar analysis in evaluating Count I) based
upon Banes termination of Blubaugh, but not of her male peers, in Blubaughs and the other
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deputies handling of the domestic violence call. This is not to say that her other allegations of
discrimination may not be valid, but those other allegations are somewhat thin. Additionally,
Blubaughs complaint easily allows an inference of multiple instances of retaliation against
Blubaugh for her engagement in protected activity designed to secure her right to equal treatment
under the law. Banes own alleged retaliation is highlighted by his apparent initiation of the
second (and perhaps, the third) internal affairs investigation after she had complained internally
about Sgt. Loughrans allegedly discriminatory treatment of her, as well as Banes request to
Blubaugh to withdraw her EEOC complaint in connection with his offer of a lesser penalty than
termination. Her refusal to comply with that request can plausibly be viewed as the reason Bane
pressed ahead with her termination, which was later found to have been arbitrary and capricious.
The complaint sufficiently states claims for relief.
Finally, Bane has not persuasively argued that he is entitled to qualified immunity. This
brief argument (Defs. Mot. Dismiss Supp. Mem. 9) essentially asserts Bane simply exercised his
authority to increase Blubaughs penalty to termination and no facts show he did so in violation
of her rights under the Equal Protection clause.

Defendants expand upon the authority

argument in their reply (Defs. Reply 8-10), but miss a central point: The plausible inference
under Blubaughs complaint is not that Bane had no authority to increase a penalty for discipline
but that he used that authority in an impermissible fashion, i.e., to discriminate and to retaliate
against Blubaugh based upon her gender and her protected activity. Bane never argues the law
was not clearly established in 2012 and afterward that such a misuse of authority to accomplish
discrimination and retaliation was a violation of law, and the Court will not construct that
argument for him. Given the decades of precedent interpreting federal law on this point, the
Court concludes Bane is not entitled to qualified immunity.

VI. Conclusion
Blubaugh has sought amendment of her complaint as a matter of right, and the Court will
direct the Clerk to docket her amended complaint and to ensure the Employer Defendant is
correctly reflected as Harford County Sheriff rather than Harford County Sheriffs Office.
Defendants motion to dismiss is unmeritorious and will be denied.
Accordingly, IT IS HEREBY ORDERED:
1. Defendants motion to dismiss (ECF No. 6) IS DENIED.
2. Plaintiffs motion to amend (ECF No. 8) IS GRANTED.
3. The Clerk SHALL DOCKET ECF No. 8-3 as the Amended Complaint.
4. The Clerk SHALL AMEND the docket to reflect the proper name of the lead Defendant
as Harford County Sheriff.
5. Defendants SHALL ANSWER the Amended Complaint in the time provided by Federal
Rule of Civil Procedure 12(a)(4).
DATED this 18th day of December, 2015.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge